The Montana Supreme Court overturned more than 100 years of state property law concerning navigable waters by effectively converting the title in hundreds of miles of riverbeds to the State. The majority of that court ruled that the entirety of the Missouri, Clark Fork, and Madison rivers were navigable at the time of Montana’s statehood, producing a broad holding that eradicates property rights to the rivers and riverbanks that Montanans had enjoyed for over a century.

Before this case, the hydroelectric energy company PPL Montana and thousands of other private parties exercised their property rights over these non-navigable stretches that the state never claimed. Today, Cato joined a brief filed by the Montana Farm Bureau Federation supporting the PPL Montana’s request that the U.S. Supreme Court review the Montana high court’s ruling for possible Takings Clause violations under the Fifth Amendment.

We argue two main points. First, that the Court should adhere to its standard for navigability rights set out in Utah v. U.S. in 1933. Unlike the approach taken by the Montana Supreme Court’s majority — that entire rivers were navigable simply because certain reaches of the river were navigable — the U.S. Supreme Court in Utah used an approach of meticulously analyzing the rivers at issue section-by-section. Second, this arbitrary ruling against rights long protected by Montana law amounts to a “judicial taking,” as explained last term Stop the Beach Renourishment v. Florida Dept. of Environmental Protection (in which Cato also filed a brief). There, a plurality of the Court held that there is no “textual justification” for limiting takings claims deriving from executive or legislative action, thereby extending it to a judicial action of the same nature (and two other members of the Court found potential relief in the Fourteenth Amendment’s Due Process Clause). Here, the Montana court did exactly that, violating due process rights that the Montana legislature could not and further violating the procedural due process rights of the thousands harmed by the decision in not affording them notice or a hearing.

The U.S. Supreme Court should thus review the case to reinforce its Utah precedent and ensure that arbitrary judicial takings of this sort cannot continue. The name of the case is PPL Montana, LLC v. Montana. The Court will decide later this fall whether to take it up.

Most of the debate over extending the Bush tax cuts has focused on whether to extend slightly lower marginal rates for higher earners who already bear a huge burden. But at the other end of the income spectrum, a growing share of Americans don’t pay income taxes. Indeed, the Bush tax cuts increased the share of U.S. households that pay no income taxes.

From the Wall Street Journal:

Efforts to tame America’s ballooning budget deficit could soon confront a daunting reality: Nearly half of all Americans live in a household in which someone receives government benefits, more than at any time in history.

At the same time, the fraction of American households not paying federal income taxes has also grown—to an estimated 45% in 2010, from 39% five years ago, according to the Tax Policy Center, a nonpartisan research organization.

A little more than half don’t earn enough to be taxed; the rest take so many credits and deductions they don’t owe anything. Most still get hit with Medicare and Social Security payroll taxes, but 13% of all U.S. households pay neither federal income nor payroll taxes.

As the price of something drops, the demand increases. For a growing share of Americans, government services are effectively “free,” so they are demanding even more and policymakers are giving it to them.

As the following chart shows, federal payments to individuals as a share of the economy have reached an all-time high after seventy years of steady growth:

George Bernard Shaw said that “A government which robs Peter to pay Paul can always depend on the support of Paul.” In order to head off the coming fiscal train wreck, Paul is going to need to be convinced that robbing Peter is no longer in his best interests. However, by foisting a larger share of the burden of government onto a smaller and smaller group of taxpayers, policymakers will make it more and more difficult for Paul to see the error of his ways.

Despite every major US bank being declared by regulators as “well capitalized” prior to the financial crisis, we still found ourselves watching the government plow hundreds of billions of capital into said banks. How can this be? The answer is quite simple: we were lied to. Maybe that’s a little harsh, after all these banks did meet the regulatory definition of “well capitalized”. But when push came to shove, market participants rightly ignored regulatory capital. After all you cannot use things like “deferred tax losses” to pay your bills with.

It is hard to improve upon Martin Wolf’s observation in today’s Financial Times: “This amount of equity is far below levels markets would impose if investors did not continue to expect governments to bail out creditors in a crisis.” This point is best illustrated by the trend in bank capital over the last 100 years. Back when banks were actually subject to market forces and were not explicitly subjected to government capital standards, they held significantly more capital. In 1900 the average US bank capital ratio was close to 25%, now it’s closer to 5%. The trend is unmistakable: the more government has regulated bank capital, the less capital banks have ended up holding.

Despite the claims of the banking industry, what the bank regulators have just delivered with “Basel III” is simply another fraud upon the public and investors. Any framework that continues to treat say Greek or Fannie Mae debt as largely risk-free is a sham.

The real solution is to first end the various government bailouts, guarantees and subsidies behind the banking system, subjecting bank creditors to actual losses, while also abandoning the charade that is capital regulation. Sadly politicians (see the Dodd-Frank Act) and regulators continue to simply tweak a flawed and morally bankrupt system.

We don’t know for certain that controversial DC Schools Chancellor Michelle Rhee will depart DC when her boss’s term ends — and it will end soon — but it seems very likely. Assuming she does leave, there is a big education lesson to be learned from Adrian Fenty’s re-election loss: Relying on crusading politicians to successfully and permanently reform a government schooling monopoly is a recipe for crushed hopes. Politics is simply too volatile — and enacting tough reforms too politically risky — for even good reforms to be sustained. It’s just another reason that the key to truly sustainable reform is school choice, in which parents control education funds, educators have to compete and perform for business, and children are no longer buffeted back and forth by the ever-changing winds of politics.

Kentucky attorney general Jack Conway went on TV Tuesday with an ad attacking Rand Paul for … endorsing freedom. The ad shows a clip from a 2008 panel show in which, according to the Louisville Courier-Journal, there was a “wide-ranging discussion that involved such things as the wisdom of motorcycle helmet laws, the lottery and expanding gambling. In response to a question about whether he favors more gambling, Paul said he opposes ‘legislating morality’ and then added: ‘I’m for having … laws against things that are violent crimes, but things that are non-violent shouldn’t be against the law.’ ”

The ad features that last sentence and then cuts rapidly to uniformed sheriffs criticizing Paul’s position. But note that they never really criticize what Paul actually said. His comment came in the context of a discussion of motorcyle helmet laws, gambling, and the state lottery. The sheriffs suggest that Paul wants to legalize selling drugs to a minor, mortgage fraud, burglary, theft, and promoting prostitution — and they say that we should “treat criminals like criminals.” But of course, of the activities mentioned, “promoting prostitution” is the only one that a libertarian would be likely to legalize. (Paul has never said he would do that.) Burglary, theft, fraud, and selling drugs to children are clearly crimes, and it’s dishonest to suggest that Rand Paul would change those laws. Conway may be a slick Louisville lawyer, but he may find that Kentucky voters won’t find such claims credible.

Paul might have been been wiser to use a term like “victimless crimes” or “actions that don’t violate anyone’s rights” in discussing “things that … shouldn’t be against the law.” Obviously burglary and theft violate rights and have victims, while gambling and riding a motorcycle without a helmet don’t. And libertarian legal theorists might question the wisdom of putting nonviolent offenders in jail; it would often make more sense to demand restitution and fines for economic crimes, for instance, rather than putting the offenders in expensive and overcrowded prisons.

But Rand Paul was making sense in 2008 when he said that a free society shouldn’t punish people who aren’t harming other people. And the attorney general of the Commonwealth of Kentucky should be embarrassed to broadcast such a dishonest twisting of Paul’s statements. If Conway thinks people should be imprisoned for gambling and riding a motorcycle without a helmet — the issues Paul was discussing — let him put up an ad saying so. And then see whose side the people are on in an honest debate.

It’s actually striking that in a conservative state, Conway did not mention any of the normal “victimless crimes” — not gambling or helmetless riding, not pot smoking, not even pornography. He apparently thought he could only win this issue by claiming that Rand Paul held the ridiculous position that burglary, theft, and fraud shouldn’t be illegal. Let’s give two cheers for the social progress that his decision reveals.

Here’s my contribution to a “one-minute debate” on ObamaCare in the Christian Science Monitor:

The new health-care law’s mandates are already causing health insurance premiums to rise 3 to 9 percent more than they otherwise would. Its price controls are pushing insurers to abandon the market for child-only coverage and will soon begin rationing care to Medicare patients, partly by driving nearly 1 in 6 hospitals and other providers out of the program.

Starting in 2014, when the full law takes effect, things will get really ugly. ObamaCare’s “individual mandate” will drive premiums even higher – assuming the courts have not declared it unconstitutional, as they should. Because the penalty for violating the mandate is a fraction of those premiums, healthy people will wait until they are sick to buy coverage, driving premiums higher still. This is already happening in Massachusetts, which enacted a nearly identical law in 2006. ObamaCare’s price controls will force insurers to cover sick patients at artificially low premiums, guaranteeing that insurers will avoid, mistreat, and dump the sick, because that’s what the price controls reward. ObamaCare’s private health-insurance subsidies will expose low-wage workers to implicit tax rates higher than 100 percent, potentially trapping millions in poverty.

With real reforms like Medicare vouchers and large health savings accounts, and letting consumers purchase health insurance across state lines, a free market would reduce costs and improve quality through innovations such as integrated health systems, nurse-practitioner-staffed primary care clinics, telemedicine, and insurance that offers even sick patients a total satisfaction guarantee.

But until Congress or the courts discard ObamaCare’s mandates, price controls, and new entitlement spending, there is literally nothing that can arrest this downward spiral of rising costs and deteriorating quality.

The above link will also take you to a counter-point by Kavita Patel of the New America Foundation.

In the Washington Post, columnist Courtland Milloy praises the “profound egalitarian insights” and “radical oneness” of D.C. Schools Chancellor Michelle Rhee (and billionaire Warren Buffett):

“I believe we can solve the problems of urban education in our lifetimes and actualize education’s power to reverse generational poverty,” Rhee wrote. “But I am learning that it is a radical concept to even suggest this. Warren Buffett [the billionaire investor] framed the problem for me once in a way that clarified how basic our most stubborn obstacles are. He said it would be easy to solve today’s problems in urban education. ‘Make private schools illegal,’ he said, ‘and assign every child to a public school by random lottery.’ ”

Milloy’s not satisfied that Rhee is taking on entrenched interests, firing principals and teachers who aren’t doing a good job, and apparently actually improving the schools in the District of Columbia. No, he’s attracted to the “radical concept” of outlawing private schools and forcing everyone in the District into the same schools, with no hope of escape. There would be one method of escape, of course: moving to the suburbs. And you can bet that lots more people would do that if Milloy and Rhee got their way.

I wonder what a total government monopoly on education would look like. Are Buffett and Rhee right that a government monopoly forced on every citizen would work well? Would work so well that it would “solve the problems of urban education … and reverse generational poverty”?

Well, one answer might be glimpsed on the same page B3 where part of Milloy’s column appeared. In an adjacent column, columnist John Kelly discussed his “Kafkaesque” five-hour visit to the state of Maryland’s Motor Vehicle Administration:

I was at the MVA. I was in Hell.

I know that complaining about the MVA or the DMV is the last refuge of a scoundrel columnist, but I don’t care. You don’t know what it was like. You weren’t there, man. I spent five hours at the Beltsville MVA on Thursday. Five hours. I could have driven to New York in that time.…

I thought: Can this really be happening? Can I really have stepped into a Kafka story? Shouldn’t every counter be filled with employees working as fast as possible? Shouldn’t management be out there helping, and Maryland state troopers, too? This is the Katrina of waiting, people.

The MVA, of course, is a monopoly government bureaucracy. Everyone must go there — CEOs, diplomats, even Washington Post columnists. And yet, somehow, that has not led to the MVA equivalent of solving problems and reversing poverty. Five hours to get a drivers’ license just might be worse performance than that of the public schools.

It’s the system, Mr. Milloy and Ms. Rhee. Monopolies don’t have much incentive to improve. Give everyone the chance to go to a different supplier, and then you’ll see improvement. Giant Food wouldn’t last long if it took five hours to buy your groceries — because it has competitors. But as long as the schools are a near-monopoly, and the MVA or DMV is a total monopoly, don’t expect real improvement.